Lessons from the Intelligence Cliff

On Friday, days before a critical law was set to expire, the Senate passed a bill that extended it for five years. The House had already done so, and the President had said that he’d sign it—a bipartisan beating of the clock. Unfortunately, the law, the Foreign Intelligence Surveillance Act Amendments Act, is one that makes it easy for the government to read the e-mails and listen to the phone conversations of American citizens, just as long as it can claim to be targeting a foreign person (or even just a foreign group) at the other end. That was not the idea of the Fourth Amendment. It’s the sort of bill that makes both Rand Paul and Al Franken angry but that President Obama supports—not to his credit. (It passed the Senate 73-23, with more Republican than Democratic votes.) Its supporters claim that it doesn’t say what it says, or, even if it did, that the government would be careful and discreet—that the N.S.A. would never, say, go after an American without a warrant by using a foreign acquaintance as a straw target. But the Senate rejected amendments, introduced by Ron Wyden, of Oregon, that would have done no more than give some sense of how many Americans are overheard and let Congress know if a secret court significantly changed the rules of the game. What are we left with? Just the dubious belief that we have a government that’s much too nice to listen in on us.

And FISA, unsurprisingly, does nothing to help with the fiscal cliff, except maybe offer some constructive parallels. With the talks now in their final hours, here are a few lessons from the edge of the intelligence cliff.

Bipartisanship has potential; it also has limits. It is possible—politically, psychologically, mathematically—for a contentious bill to get through both houses with supporters and opponents from both parties. This can be stated in negative terms, well summed up in a line from Salon’s Alex Pareene: “Congress shows that they can still band together and vote for horrible things.” A President slamming through a bill that the other party wants more than his own does is not always for the best. (In some scenarios, it’s known simply as surrendering.) But there are odd coalitions to be had, even in the age of polarization. Maybe there are even some real libertarians left.

Read the bill, don’t just believe what its supporters say is in it. A bill with major constitutional implications was hurried through at the end of the year with little or no public debate; is the same thing going to happen to entitlement programs? We were told that no one but terrorists would be affected by FISA; we’ll also hear about how any changes to, say, Medicaid are only going to make it stronger. If there is a cliff deal, it will have to come together quickly—exactly the sort of situation in which dicey elements slip in. There has already been a major concession by Obama in the form of a technical change to inflation calculations.

Deadlines are important, but some things are more important. Senator Dianne Feinstein, after assuring everyone that they really shouldn’t worry about FISA, talked as though there just wasn’t time for amendments, even ones that only increased oversight: “The problem is we have four days and this particular part of the law expires.” Would five days have been enough? The reauthorization is for five years. Republicans have been the party of cliff insanity; but they can’t be allowed to assume that, in the name of reason, the Democrats will toss away any and every precious thing to keep the clock from running past midnight.

That leads to the final lesson, one that the Obama Administration may not have internalized yet:

Remember that the election is over. And remember who won.

Photography: The Washington Post/Getty Images

Amy Davidson Sorkin is a New Yorker staff writer. She is a regular Comment contributor for the magazine and writes a Web column, in which she covers war, sports, and everything in between.